Analysis
of the Ruling in the
Miguel Angel Sandoval Rodriguez Case by
Memoria y Justicia

Miguel
Angel Sandoval, a 26-year old tailor and member of the MIR,
was arrested January 7, 1975 by agents of the DINA secret
police on a public street of Santiago. Several people who
were in detention with him have testified that he was last
seen alive, but in very bad condition as a result of torture,
in the Villa Grimaldi torture center. Twenty-eight years later,
on January 5, 2004, the memory of Miguel Angel Sandoval and
all disappeared persons received a tribute in the form of
the Fifth Chamber of the Court of Appeals' confirmation of
the first conviction of upper echelons of the DINA.

Prior to this decision, the Supreme Court's Second Criminal
Chamber had revoked the application of the amnesty law in
cases related to the forced disappearances of Enrique Poblete
Cordoba, Julio Fidel Flores Perez, Anselmo Radrigan Plaza
and Roberto Aranda, among others. The military courts had
dismissed these cases before concluding the investigations.
Reopening of these cases by ordinary courts of justice added
force to the principle that amnesty is not an impediment to
investigation, as advanced by former President of Chile Patricio
Aylwin. Many human rights organizations and lawyers wondered,
with varying degrees of skepticism, whether the courts would
allow a sentence to stand.

On April 16, 2003 Judge Alejandro Solis sentenced Manuel Contreras,
former chief of the repressive DINA agency, to 15 years in
prison as author of the abduction of Sandoval. This was the
first guilty verdict against Contreras since the trial and
symbolic conviction in 1995 for the assassination of Orlando
Letelier. Four other DINA operatives received sentences ranging
from 5 to 15 years as authors or accomplices in Sandoval's
abduction and subsequent disappearance.

Nine months later the Court of Appeals upheld this historic
ruling, although with reduced sentences. The ruling is the
first handed down by the Appellate Court in a case involving
a disappeared person with a sentence dictated.

Viviana Diaz, president of the Association of Relatives of
the Disappeared, described the significance of the decision
for Memoria y Justicia:
"For us the ruling's importance lies in its recognition of
abduction as a permanent crime. Throughout the dictatorship
and this political transition period, we have wagered on the
courts. In the past, even in the face of adversity with the
rejection of thousands of habeas corpus writs, we always believed
that the correct road to follow was via the courts. That is
why we value the appointment of judges exclusively to human
rights cases. Once more judges have with the infrastructure
they need, events have shown that it is possible to advance
in ascertaining the truth regarding what happened."

The decision also establishes more solid ground for the preeminence
of international human rights treaties over domestic law,
recognizing the State's obligation to respect international
law established even by treaties as yet not ratified by Chile.

In this regard, the plaintiff attorney for the Sandoval case,
Nelson Caucoto, described the ruling as "…solid and modern;
in step with the globalization process. It is an international-oriented
decision appropriate for this age."

The ruling reflects arguments on the supremacy of international
law that Caucoto developed as part of his pleadings. He explained
to Memoria y Justicia:
"International law does not refer only to treaties. International
law also includes the right of peoples - customary or common
law - as well as the universal laws of jus cogens. These are
mandatory, inalienable norms that are binding upon states.
The laws of jus cogens pertain to what are known as peremptory
norms of general international law. For example, Chile does
not have to enact a law prohibiting slavery because as a principle
of international law slavery is not permissible in any country.
The same goes for torture. The prohibition against crimes
against humanity and serious war crimes are becoming general
principles of international law. That is why the court says
even though Chile has not ratified the treaties, it is still
obligated to adhere to those norms. We have a strange situation
in Chile. International law is not alien in economic matters
whereas international human rights law receives a discriminatory
treatment."

Military officers accused of serious human rights crimes committed
during the dictatorship commonly shield themselves with the
excuse that they were only following orders. But rarely has
any defendant deliberated on whether what he was ordered to
do was a crime. This ruling includes extensive analysis on
the responsibility of military personnel to exercise reflexive
obedience and to safeguard the life and rights of citizens.

In this regard Nelson Caucoto observes:
"The ruling also considers the issue of due obedience that
Chilean law had resolved from the standpoint of criminal doctrine.
Military due obedience has three requirements. First, there
must exist the relation of military superior and subordinate.
The second requirement is that the order must be legitimate,
that is, within the function as military. For example, a regiment
commander lacks legitimacy to tell the conscript to vote for
Lavin in the next elections. Third, what is ordered must be
part of the military functions. Abduction is not part of military
functions. Ordering to kill or torture is not part of military
functions. If we analyze these requirements, we see that due
obedience has no place as justification for human rights crimes."

During the course of the year 2004, the Supreme Court will
hear the last appeal of the Sandoval case. Judicial development
of the present time makes Caucoto optimistic for a favorable
resolution:
"Without a doubt, the decision in the Miguel Angel Sandoval
case is an important advancement. Those who do not see that
are blind. Those who still think that impunity is the only
outcome for cases today disregard the progress of the past
year. We are experiencing a zenith and the results speak for
themselves. You need only take a look at the number of military
personnel arraigned. The most remarkable development is the
great number of confessions that occured during the trials.
Never before have we seen this here.

" I don't know how long this period of progress will
last. It is directly related to the special judges. Nothing
would have been obtained without the mechanism of the special
judges. And we must not forget the work of police. Behind
every special judge there is the Investigations Police Fifth
Department that supports that judicial case." "I
always maintained an optimistic outlook. That's what has kept
me in this area for so many years. I begin this year with
the same optimism I begin every year. It should go well for
us in the Supreme Court. In its previous rulings, the Supreme
Court has said that the amnesty law does not hinder investigations.
I can't believe it will be so inconsistent as to say that
amnesty is not an obstacle for investigation but it is an
obstacle for sentencing."

Excerpts
from the Ruling of the Fifth Chamber of the Santiago Court
of Appeals
in the case of Miguel Angel Sandoval Rodriguez

On
abduction as a permanent crime

27 That, we must state that abduction as regulated in article
141 of the Criminal Code may become aggravated when the action
is extended in time, for more than 90 days, as a consequence
of the action, whether as the result of a serious harm to
the person or to the interests of the affected person;

28 That, considering records of the case established that
abduction took place and that this was prolonged for more
than 90 days, and we still lack information regarding the
whereabouts of Miguel Angel Sandoval Rodriguez, this is sufficient
information to consider the presence of aggravated abduction
in this case;

29 That the aforementioned crime is permanent or on-going
as the action that brought it about and the injury to the
affected individual is prolonged in time; the action and consequence
persists.
On international human rights treaties

33 "That the crime of abduction that affects Miguel Angel
Sandoval Rodriguez to the present time, set forth in article
141 of the Criminal Code. It also corresponds to the crime
described in article II of the Inter American Convention on
Forced Disappearance of persons subscribed in Belen de Para,
Brazil on June 9, 1994 and entered into effect internationally
on March 29, 1996, upon ratification by several Latin American
States. This treaty was approved by the Chamber of Deputies
by 45 votes in favor, 2 opposed and 14 abstentions, and is
currently in course in the National Congress.(...)

34 That, in effect, article II of the Convention states: "For
purposes of these proceedings, the Para Convention shall consider
forced disappearance as the deprivation of freedom of one
or more persons committed by agents of the State or by persons
or groups of persons who act with authorization, support or
acquiescence of the State, followed by the lack of information
or the refusal to acknowledge said deprivation of freedom
or to inform on the whereabouts of the person, by which it
impedes the exercise of legal recourses and pertinent procedural
guarantees.

35 That, as signatory to the Convention on the Forced Disappearance
of Persons, Chile is obligated by the Vienna Conventions of
1969 on Treaty Law, that was incorporated as part of our country's
domestic law, not to frustrate the purpose and objective of
said Convention, in accordance to its article article 18,
prior to its entrance in force;

36 That, consequently, if the situation described by the aforementioned
article II of the Convention on Forced Disappearance of Persons,
were to remain unsanctioned in Chile, the object and purpose
of this Convention would be violated;

37 That, as the President of the Republic stated in his Message
upon introducing the Convention to the Honorable Chamber of
Deputies, "It is important to bear in mind that the practice
of forced disappearance of persons constitutes one of the
most atrocious forms of human rights violations and that this
Convention will strengthen the political will of the American
continent to completely eradicate that abominable form of
injury to human dignity;"

38 That, while it is true that the Convention on Forced Disappearance
of Persons classifies this crime as an International Crime,
from a merely formal standpoint it has not been incorporated
as yet in Chilean domestic law. It is not less true that for
many years forced disappearance of persons has been considered
a grave offense to intrinsic human dignity enshrined by numerous
international instruments obligatory for Chile such as: the
United Nations Charter, Charter of the Organization of American
States, American Convention on Human Rights or the Charter
of San Jose, United Nations Pact on Civil and Political Rights
and, that, more importantly, constitutes a crime against humanity
as defined by the Statutes of the International Criminal Court,
that is in effect internationally."

39 That, the Convention on Forced Disappearance of Persons
classifies the crime of forced disappearance of persons as
an international crime, which carries the following legal
consequences: individual responsibility and State responsibility,
the inadmissibility as extenuating circumstance of due obedience
to an order from a superior officer, universal jurisdiction,
the obligation to extradite or try those responsible for the
crime, the obligation not to provide asylum to those responsible
for the crime, the inapplicability of statues of limitation,
the illegality of benefiting from actions of the executive
or legislative branches which may led to impunity of the crime
and obligation to investigate and sanction those responsible
for the crime(…)

On
the Preeminence of International Human Rights Treaties
45 That, in 1989, the Constitution of Chile incorporated the
following second clause of article 5 that states: "The exercise
of sovereignty recognizes as limit the respect for fundamental
rights that arise from human nature. It is the duty of State
agencies to respect and foster such rights, guaranteed by
this Constitution, as well as international treaties by Chile
and that are presently in effect." Article 5 thus grants constitutional
status to treaties that guarantee respect for human rights,
conferring a greater hierarchy over other international treaties,
in relation to the regulation of inherent fundamental rights.

48 That, as Humberto Nogueira stated: "… According to
article 5, clause 2 of the Constitution, human rights ensured
by the treaty are incorporated as part of internal order,
forming part of constitutional matter in full force with legal
validity and efficiency that no State institution may disavow,
mandating respect and promotion as well as protection for
the full respect for rights. … This obligation derives not
only from article 5 of the Constitution but also from the
international treaties themselves, including article 1 of
the Four Geneva Conventions of 1949 that establish the duty
of States party to the treaty to respect and enforce respect
for international humanitarian law."...

50 That, the Permanent International Court of Justice ruled:
"A universally recognized principle of Rights of Man regarding
signatories is that domestic law cannot prevail over a treaty,"
and "A state cannot invoke its own Constitution in order to
evade obligations imposed by International Law to treaties
in force."

On
the Inapplicability of Amnesty Law

76 That, in regards to the applicability of amnesty and statutes
of limitations as argued in the court record, the following
should be taken into consideration: a) That article 1 of Decree
Law 2191 granted amnesty to all persons who, as authors, accomplices,
and concealers of a crime, incurred in certain criminal actions
during the existence of state of siege, from September 11,
1973 and March 10, 1978; b) That, as has become clear during
the course of proceedings, the aggravated kidnapping of Miguel
Angel Sandoval Rodriguez at Villa Grimaldi is an accredited
crime, in which no information exists as to his whereabouts
or possible demise, whether through confession of the accused
or testimony of witnesses who likewise were abducted and tortured
in the Villa Grimaldi secret detention center, or through
the recovery of Sandoval Rodriguez's body; c) That, in light
of these facts, and in view of the ongoing nature of the crime
of abduction as long as it extends in time, Amnesty Law is
inapplicable, nor does the penal action prescribe, as the
illegal action has not ceased in its consequences for the
victim who is still disappeared."

On Lack of validity of the argument of due obedience

95 That, article 33 of said Statute sets forth that whoever
commits a crime by obeying an order issued by his government
or superior, either military or civilian, shall not be exempted
of responsibility unless: Law obligated him to follow orders
given by his government or hierarchical superior officer;
or he was unaware that the order was illegal or the order
was not explicitly illegal. Orders to commit genocide or crimes
against humanity are understood to be explicitly illegal.
(…)

98 That, articles 334 and 335 of the Military Justice Code
amply refer to the situation of obedience to orders... And
article 335 adds: "…if the lower-ranking officer who
received the order knows that the higher officer did not sufficiently
understand the situation, or the events preceded the order,
or the order appears to have been received by deceit or there
is reason to fear that evil results arise from its execution
that the higher officer failed to foresee, or that the order
will clearly lead to the perpetration of a crime, then, the
lower officer may suspend compliance with that order. In urgent
cases, he may alter it after informing his superior. If he
insists in carrying out the order, it should be carried out
in the terms set forth by the previous articles." This
is set forth in article 20 of the Armed Forces Disciplinary
Regulations, according to Supreme Decree N 1445 of December
14, 1951.

99 That, the court record in this case does not present evidence
that the defendants expressed disagreement with the orders
to carry out the crime. This renders invalid the argument
that their condition as military men obligated them to carry
out all orders. Their attitude also deserves severe reprimand,
as they were fully familiar with military doctrine and traditions,
which never harbor the commission of a crime such as that
for which they are now sanctioned;

100 That, the Army, other Armed Forces and Carabinero Police
of Chile, are founded upon ethical principles such as honor,
patriotism, self-denial and subordination, loyalty, moral
honesty, disciplinary spirit, obedience and courage. In name
of these values they should be inclined to comply with their
duties that have as objective to protect and respect the country's
institutional life from external or internal attack. In such
a situation, the protection of life and rights of citizens
is clear and the defense function derives from this vantagepoint.
The highest value is to defend a nation and the life of its
citizens and a defensive attack cannot have any other objective
other than to safeguard these precious values;

101 That, nonetheless, evidence presented in the proceedings
indicate those ethical principles were violated. Once the
Armed Forces came to power, with support from the population,
subsequently, persons whose ideas were contrary to theirs
came under their power. It was their primary duty as soldiers
to protect these people and accord them a dignified treatment
and bring them before the courts, within the institutional
framework of the country, even military courts in the case
of war or internal disturbance, so that judges may judge their
actions. Thus, the human grandeur implicit in a soldier's
honor and the characteristic the founders of this nation endowed
the Army and Armed Forces of Chile was absent.

On the Reflexive Obedience Theory

102 That, obedience deserves particular mention as a military
virtue, moral habit, sign of nobility and basic principle
upon which is founded the discipline for defense and national
security, that, in the case of the Armed Forces of Chile,
is set forth by article 20 of Disciplinary Regulations established
by Supreme Decree N 1445 of December 14, 1951, and in the
case of Carabineros, by article 7 of the Disciplinary Regulations
established by Supreme Decree N 900 of July 17, 1967, incorporate
the Theory of Reflexive Obedience. This means that lower-ranking
military officers who receive an order must examine the order.
If he believes it to be illegal, he is not obligated to comply,
and must suspend his compliance, after indicating the illegality
of the order to his superior. Should the superior insist,
the lower officer must comply, but only the superior office
will hold criminal responsibility for the crime committed.
The lower officer will only be responsible if he fails to
object to the order or, if he did object, carries out the
order without the insistence of the higher officer.
Illegal detention of persons is not a public employee function

103 That, regarding the allegation that the crime documented
by the case records is illegal detention as set forth in article
148 of the Criminal Code, with a different penal sanction,
from the crime of abduction, indicating the public employee
nature of the defendants; this argument should be disregarded,
as, on the contrary the crime of abduction sanctions he who
arrests or holds a person in custody for no reason, depriving
him of freedom. In contrast, the crime of illegal detention
corresponds to the public employee who outside the bounds
of law, arrests an individual, when the faculty to arrest
has a precise objective that is regulated by articles 251
to 272, 278 and 280 to 305 of the Code of Criminal Procedure.
Moreover, this is not a case of a public employee who acts
as such, as arresting people without a court order, taking
them to secret detention centers and depriving them of freedom
would be inadmissible as part of their public employee functions.